Not long ago, a colleague remarked that all this "repatriation
business" would disappear if only existing statutes were adhered to.
I remember thinking at the time that only the Archaeological Resources
Protection Act could result in some human skeletons being considered
as scientific or museum specimens, and that this statute did not apply
to very many of the museum or scientific collections that archeologists
might be concerned with. In fact, most statutes that dealt with human
skeletons were state or local statutes designed to protect burials or
cemeteries. In 1989 and 1990 Federal statutes were enacted that provided
direction on how Native American remains and other special artifacts
are to be treated. The 1989 statute deals with collections owned or
controlled by the Smithsonian Institution. In 1990, a far more comprehensive
statute, the Native American Graves Protection and Repatriation Act,
was enacted.

On November 16, 1990, President Bush signed into law
the Native American Graves Protection and Repatriation Act (P.L. 101-601,
25 U.S.C. 3001-3013). The law has generated widespread interest and
concern among Native Americans, museum professionals, archeologists,
and Federal agency officials charged with meeting its requirements.
A variety of actions are needed to implement the Native American Graves
Protection and Repatriation Act of 1990. These range from the bureaucratic
establishment of the review committee mandated by the law, to the development
of regulations, to providing training in various aspects of compliance
and administering a grants program. This article describes two of the
main aspects of the statute that seem clear in the language of the act
and the intent expressed in congressional reports on the legislation
that became the statute: (1) the types of organizations primarily responsible
to undertake activities required by the statute, and (2) the kinds of
remains and artifacts covered by the statute.

Both the statutory language and the Committee reports
describe the context for effective implementation. A successful approach
will require consultations and agreements between and among Indian Tribes
and Native Hawaiian organizations, traditional Native American religious
leaders, Federal agencies, and museums receiving Federal funds. The
Committee reports express the hope that these discussions will lead
to a better understanding of the historic and contemporary cultural
values of remains and objects. The Senate Report notes both that human
remains must at all times be treated with dignity and respect and the
important role that museums play in educating the public and increasing
social awareness about the Nation's prehistory and history.

Overview
of the Act

The Native American Graves Protection and Repatriation
Act establishes two main requirements. First, Federal agencies and museums
receiving Federal funds are required to inventory individually Native
American human remains and associated funerary objects and develop written
summaries for unassociated funerary objects, sacred objects, and objects
of cultural patrimony that are in the collections they own or control.
As part of the inventory process, agencies and museums are to establish,
as best they can from the items, records, and other data, the likely
lineal descendent(s) or cultural affiliation of these items with modern
Native American individuals, Indian Tribes, or Native Hawaiian organizations,
or conclude that lineal descent or cultural affiliation cannot be established.
Agencies and museums must notify Indian Tribes or Native Hawaiian organizations
that appear to be culturally affiliated with the items of their holdings
and offer them the opportunity to claim the remains and items. Tribes
and Native Hawaiian organizations may then request the repatriation
of these cultural items and are entitled to those with which they are
culturally affiliated or to which they have a relationship of lineal
descent.

Potential lineal descendants, Indian Tribes, or Native
Hawaiian organizations may request the repatriation of human remains
or associated funerary objects for which no cultural affiliation is
established by the agency or museum, or for which they disagree with
the lineal descent or cultural affiliation established by the agency
or museum. Remains and objects for which lineal descent can be demonstrated
or for which a Tribe or Native Hawaiian organization can show cultural
affiliation by a preponderance of the evidence using geographic, kinship,
biological, archeological, anthropological, linguistic, folklore, historic,
oral traditional, or other relevant information or expert opinion are
to be repatriated, if requested by the appropriate descendent, Tribe,
or Native Hawaiian organization.

The statute also requires a set of steps and conditions
related to the description of cultural items, either through item-by-item
inventories or written summaries, the evaluation of likely lineal descent
or cultural affiliation, and the repatriation of unassociated funerary
objects, sacred objects, and objects of cultural patrimony are similar
to those for human remains and associated funerary objects.

The second principal intention of the law is the protection,
on Federal and Tribal land, of Native American graves and other cultural
items still located within archeological sites. This approach encourages
the in situ preservation of archeological sites, or at least the portions
of them that contain burials or other kinds of cultural items, but may
encompass other actions to preserve these remains and items. Therefore,
it is advantageous for Federal agencies and Tribes undertaking land-modifying
activities on their lands to precede them with careful consultations
with traditional users of the land and intensive archeological surveys
whenever possible. This will help agencies and Tribes to locate and
then avoid unmarked Native American graves, cemeteries, or other places
where cultural items might be located. On Federal and Tribal lands,
archeological investigations for planning or research purposes, or other
land modifying activities that inadvertently discover cultural items
require the Federal agency or Tribe involved to consult with affiliated
or potentially affiliated Native Americans concerning the treatment
and disposition of these items.

Other provisions of the Act may be summarized as follows:
(1) it stipulates that illegal trafficking in human remains and cultural
items may result in criminal penalties; (2) it authorizes the Secretary
of the Interior to administer a grants program to assist museums and
Indian Tribes in complying with this law; (3) it requires the Secretary
of the Interior to establish a Review Committee to provide advice and
assistance in carrying out key provisions of the statute; and (4) it
directs the Secretary to develop regulations in consultation with this
Review Committee.

Responsible
Organizations

Executing the provisions of the Graves Protection and
Repatriation Act involves three primary participants: Federal agencies,
all museums receiving Federal funds (including state, local, and private
institutions), and Indian Tribes and Native Hawaiian organizations.
This section summarizes the roles of each. Oversight of and directions
for the activities required of these three types of organizations are
to be provided by the Secretary of the Interior and the Review Committee
established by the statute.

Other organizations with which some of the activities
required by the Act should be coordinated are the Advisory Council on
Historic Preservation and the State Historic Preservation Officers.
For projects or activities that require review under Section 106 of
the National Historic Preservation Act in addition to the Graves Protection
and Repatriation Act, close coordination during the completion of the
two review processes will save time in project planning and execution.

Indian
Tribes and Native Hawaiian Organizations

The definitions of Indian Tribe and Native Hawaiian
organization are provided in the statute. The statutory definition of
Indian Tribe is, "any Tribe, band, nation, or other organized group
or community of Indians, including any Alaska Native village (as defined
in, or established pursuant to, the Alaska Native Claims Settlement
Act), which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians." Native Hawaiian organizations are defined by the statute as,
"any organization which (A) serves and represents the interests of Native
Hawaiians, (B) has as a primary and stated purpose the provision of
services to Native Hawaiians, and (C) has expertise in Native Hawaiian
Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama
I Na Kupuna O Hawai'i Nei."

These definitions are important in describing the organizations
that may make claims related to the rights affirmed by the statute.
They also make clear that agencies and museums are to deal with representatives
of these organizations, not with Native American individuals, or those
claiming to be Native Americans, except in cases for which lineal descent
is being claimed.

Museums
Receiving Federal Funds

The statute defines "museum" as "any institution or
state or local government agency (including any institution of higher
learning) that receives Federal funds and has possession of, or control
over, Native American cultural items. Such term does not include the
Smithsonian Institution or any other Federal agency."

A number of Federal agencies supply financial support
to museums and most museums receive at least some Federal funds. The
committee reports are silent on issues of when and how directly any
museum has received funding in order for it to be required to comply
with the statute. Most large museums and many smaller museums within
the United States will have to comply with this statute.

Museums are required to conduct inventories or written
summaries of all cultural items within their collections regardless
of the means of accession or geographical point of origin of the items.
Some museums serve as the repositories for cultural items that were
obtained from Federal or Tribal lands. The museums may conduct the required
inventories or written summaries on behalf of Federal agencies or Tribes
if these entities request it. However, for human remains and other cultural
items that came from Federal lands or for which Federal agencies have
administrative responsibility, each agency must ensure that inventories
or summaries are done either within each agency structure or by a repository.
Federal agencies may transfer the workload to a museum, not the ultimate
responsibility for complying with the statute.

Federal
Agencies

Except for the Smithsonian Institution, which is covered
under a separate statute, all Federal agencies that manage land or are
responsible for archeological collections from their lands or generated
by their activities must comply with the Native American Graves Protection
and Repatriation Act.

In addition to these three kinds of primarily responsible
organizations, two other officials or committees are key to the implementation
and functioning of the statute.

Secretary
of the Interior

The statute assigns responsibility for implementation
of many aspects of the Native American Graves Protection and Repatriation
Act to the Secretary of the Interior. Specifically, the Secretary must:

establish a review committee of seven persons to
monitor and review inventory, identification, and repatriation activities;

provide reasonable levels of administrative and
staff support for the review committee along with any rules and regulations
for its operations; and

promulgate regulations for implementing the statute.

In addition, the Secretary is authorized to do the following:

develop and administer a grants program to assist
Tribes and museums in repatriation activities;

review requests from museums for extensions of time
to complete inventories of human remains and funerary objects, and
to grant temporal extensions upon finding a "good faith" effort;

assess civil penalties of any museum that fails
to comply with the statute or its implementing regulations; and

when requested by agencies, assume the review and
consultation responsibilities that would normally be required of Federal
agencies when Native American cultural items are discovered inadvertently
on agency lands.

This review committee is established by Section 8 of
the statute. The committee's views do not bind the Federal Government,
but will be a very important consideration for any action that the Secretary
or others must take in implementing the statute.

To ensure a fair expression of all views, committee
membership is explicitly stated in the law. Appointment of members is
by the Secretary of the Interior from nominations submitted by Indian
Tribes, Native Hawaiian organizations, and traditional Native American
religious leaders, and from national museum and scientific organizations.
Consisting of seven members, the duties of the committee are to monitor
and review inventory, identification, and repatriation activities. It
may make findings relating to cultural affiliation and repatriation
issues if requested, facilitate the resolution of disputes, consult
with parties, and offer suggestions about the care of repatriated materials.
The regulations that implement the statute are to be developed in consultation
with the committee. The committee must compile an inventory of culturally
unidentifiable human remains that are in the possession or control of
each museum and Federal agency, and recommend specific actions for developing
a process for disposition of such remains. Each year, the committee
is to submit a report to Congress on the progress made and any barriers
encountered in carrying out its function.

The statute assigns an important role of national scope
to the committee. However, most specific matters concerning repatriation,
inventory, and potential agreements concerning excavation are best approached
through agreements negotiated by local agency offices, museums, Tribes,
and Native Hawaiian organizations. It is anticipated that the committee's
role in consulting and facilitating dispute resolution will only be
invoked when such agreements at the local level are not possible.

What
is Covered: The Definitions of Cultural Items

The kinds of remains and the artifacts covered by provisions
of the statute are: (1) human remains and associated funerary objects;
(2) unassociated funerary objects; (3) sacred objects; and (4) objects
of cultural patrimony. With the exception of human remains, each of
these kinds of cultural items is defined within Section 2 of the statute.

"Human remains" are not defined in the statute, and
consequently all Native American human remains are covered. This means
that whether or not Native American human remains came from a burial
site, such remains are covered by the statute. In other words, isolated
human bones, teeth, hair, or other kinds of bodily remains that may
have been disturbed from a burial site are still subject to the provisions
of this statute.

"Associated funerary objects" are objects reasonably
believed to have been placed with human remains as part of a death rite
or ceremony. The use of the adjective "associated" refers to the fact
that these items retain their association with the human remains with
which they were found and that these human remains can be located. It
applies to all objects that are stored together as well as objects for
which adequate records exist permitting a reasonable reassociation between
the funerary objects and the human remains that they were buried with.
This situation may include materials located in a different repository
from the human remains. This category of cultural items also includes
objects "...exclusively made for burial purposes or to contain human
remains...", but that may not have been found with human remains.

It frequently occurs in archeological sites that artifacts
seemingly from burials were not placed with the human remains as part
of a death rite; rather they have been introduced into the burial later
by natural processes or cultural activities unrelated to death rites
or ceremonies. These latter objects would not be considered funerary
objects.

"Unassociated funerary objects" are items that "...as
a part of a death rite or ceremony of a culture are reasonably believed
to have been placed with individual human remains either at the time
of death or later...", but for which the human remains are not in the
possession or control of the museum or Federal agency. These objects
also must meet one of two further conditions. They must be identified
by a preponderance of the evidence as either "... related to specific
individuals or families or to known human remains..." or "...as having
been removed from a specific burial site of an individual culturally
affiliated with a particular Indian tribe."

"Sacred objects" are defined in the statute as "...specific
ceremonial objects which are needed by traditional Native American religious
leaders for the practice of traditional Native American religions by
their present-day adherents..." Further discussion of this term is supplied
by the Senate Committee report:

"There has been some concern expressed that any object
could be imbued with sacredness in the eyes of a Native American, from
an ancient pottery shard to an arrowhead. The Committee does not intend
this result. The primary purpose of the object is that the object must
be used in a Native American religious ceremony in order to fall within
the protection afforded by the bill."

Additional information is supplied by the House Report:

"The definition of "sacred objects" is intended to include
both objects needed for ceremonies currently practiced by traditional
Native American religious practitioners and objects needed to renew
ceremonies that are part of traditional religions. The operational part
of the definition is that there must be 'present day adherents' in either
instance."

The key provision in this definition is whether the
items are needed to practice or renew traditional religions. It should
be possible to describe specific religious uses for the objects identified
as sacred. Review of this definition through the regulation development
process may require definitions of such terms as "religious leaders,"
"traditional," and "religious use." All of these terms probably will
vary among groups and between regions.

"Objects of cultural patrimony" are defined in the statute
as having "...ongoing historical, traditional, or cultural importance
central to the Native American group or culture itself, rather than
property owned by an individual Native American, and which, therefore,
cannot be alienated, appropriated, or conveyed by any individual..."
The key provision in this definition is whether the property was of
such central importance to the Tribe or group that it was owned communally.
The potential vagueness of this term again produced comment by the Senate
Committee:

"The Committee intends this term to refer to only those
items that have such great importance to an Indian Tribe or to the Native
Hawaiian culture that they cannot be conveyed, appropriated or transferred
by an individual member. Objects of Native American cultural patrimony
would include items such as Zuni War Gods, the Wampum belts of the Iroquois,
and other objects of a similar character and significance to the Indian
Tribe as a whole."

In contrast to a more general usage, the Senate Committee
comments concerning "objects of cultural patrimony" indicate that most
often this category will relate to specific, often ethnographic objects,
rather than a generic class of archeological objects; we believe that
this category probably includes few archeological objects. On the other
hand, some items found in museums or collections of Federal agencies
may have been inadvertently acquired from individuals who had no right
of alienation or possession.

Having reviewed the definitions of cultural items, note
that many objects in archeological or ethnographic collections are not
covered by the statute, because they never had a burial, funerary, religious,
or cultural patrimonial context in the culture that they were part of.
Such objects would be retained in existing repositories with appropriate
treatments and care. When archeological investigations or unanticipated
discoveries on Federal or Tribal land result in the recovery of such
items, they are to be treated and disposed of according to the requirements
of the appropriate archeological or historic preservation laws.

Summary

The requirements of the Native American Graves Protection
and Repatriation Act and the legislative intent based upon the committee
reports present a clear picture of the kinds of organizations that bear
primary responsibility for actions under the statute. There are three
main types of organizations responsible for various actions required
by the statute: Indian Tribes and Native Hawaiian organizations, Federal
agencies, and museums that receive Federal funds. Similarly, the kinds
of objects in existing collections and that will be excavated or inadvertently
discovered on Federal or Tribal lands and are subject to treatment or
disposition as described in the act are clear.

This article has attempted to integrate many comments
and answer questions we have received from museums, Federal agencies,
and Native Americans concerning the statute. Many of these suggestions
and the issues that they raise cannot be answered outside of the formal
rulemaking process. We have attempted to explore some of the issues
that this process may consider.

All Federal agencies, museums that receive Federal funds,
Indian Tribes, and Native Hawaiian organizations are encouraged to collaborate
in developing creative and mutually respectful solutions to the challenges
posed by this important statute.

Dr. Francis P. McManamon is the Departmental Consulting Archeologist
for the U.S. Department of the Interior and chief, Archeological Assistance Division,
National Park Service, Washington, DC.